[28] Although the trial judge was satisfied that the amounts the Plaintiff had received for past income replacement benefits had exceeded the tort award for past loss of income, he wrote that he could not determine from the evidence what amounts the Plaintiff had actually received under the settlement on account of future income replacement benefits.”

[146] In retrospect, the defendants may rue the day when they unleashed the plaintiff on their suppliers rather than spending the time to work on her designs with her and collect standard samples for each design element and samples for those items where upgrades would be offered to her. They may equally regret having failed to make the plaintiff’s choices for her despite repeatedly threatening to do so. They may regret failing to amend their form of contract document to reflect better the practical difficulties associated with the vendor’s decision to allow purchasers to make selections “off-menu.” However, regrets are not synonymous with a default. At the time that the agreement was declared to be at an end, I cannot find that the plaintiff was in breach or unreasonably failing to make final choices. As noted in the survey of items above, in some cases the vendor was in the wrong. In many there was good reason for discussions as both parties were neither fully right nor fully wrong. It was the vendor’s choice to engage in an iterative process with the plaintiff. I see no provision of the agreement that gave it the right to unilaterally declare the process over in the absence of full performance on its own side.

[1] This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. The time has arrived for a reassessment of the question.